COURT FILE NO.: DR(P)250/20 DATE: 2020 06 04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN R. Mushlian, for the Crown

• and -

ANDRY KORKIS G. Pannu, for the Defence

HEARD: May 27, 2020, by teleconference

PUBLICATION BAN Publication is banned pursuant to s. 517(1) and s. 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the applicant (counsel are permitted to circulate these reasons to other counsel and use in court)

REASONS ON BAIL REVIEW APPLICATION

L. SHAW J.

Overview

[1] The applicant, Andry Korkis, was detained following a bail hearing held on January 3, 2020 before Justice of the Peace D’Souza. The applicant now applies for a bail review pursuant to s. 520 and s. 525 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] As a result of the temporary closure of the Superior Court of Justice courthouses due to the COVID-19 pandemic, this hearing was conducted, on consent, by way of a telephone conference. Mr. Korkis attended by telephone from the Toronto South Detention Centre (“TSDC”) where he is being detained.

[3] The evidentiary record before me includes an affidavit from Mr. Korkis and his two proposed sureties – Fatin Ashaq, who is Mr. Korkis’ mother, and Riyadh Rouksi, who is Mr. Korkis’ father. Additional evidence included an affidavit of Dr. Orkin regarding the impact of COVID-19 on correctional facilities. In his opinion, aggressive reductions in the populations of those institutions are necessary to prevent or limit the spread of the virus. Additional information from Recovery Science, the company that will provide GPS ankle monitoring for Mr. Korkis if he is released, was also filed.

[4] The Crown relied on an information sheet prepared by the office of the Ministry of the Solicitor General which provided an overview of the current status of the Ministry’s response to COVID-19 in the correctional institutions in Ontario, including TSDC. On the morning of the hearing, the Crown filed the updated information sheet providing statistics as of May 25, 2020. The Crown also relied on evidence regarding firearm crime statistics in the Peel Region between 2014 and 2019.

[5] Both parties filed extensive case briefs and summaries. There were no cross-examinations conducted nor were any issues raised regarding the admissibility of the evidence filed on this hearing.

[6] There is no dispute that this is a reverse onus situation meaning that the onus is on Mr. Korkis to prove, on a balance of probabilities, why his detention in custody is not justified.

[7] On review, a decision of a justice of the peace may be varied or set aside if there has been a material change in circumstance or an error in law. At the commencement of the hearing, the Crown agreed that COVID-19 constituted a material change of circumstances and that the initial bail decision can be reviewed on that basis. Counsel agreed that I did not have to consider Mr. Korkis’ position that D’Souza J.P. made an error in law in his decision or his request for a review pursuant to s. 525 of the Criminal Code.

[8] On May 29, 2019, I delivered oral reasons that Mr. Korkis’ application was dismissed, to be followed by written reasons. These are my written reasons.

Background

[9] Mr. Korkis stands charged with the following 24 offences:

• Charge date: July 4, 2018: a. Six counts of mischief over $5,000 (s. 430(3)) b. Three counts of arson causing damage to property (s. 434) c. Five counts of possession of incendiary material (s. 436.1)) d. Possession of property obtained by crime (s. 354(1)(a)) e. Three counts of attempt to commit an indictable offence (s. 463(a))

• Charge date: August 28, 2019: a. Breach of recognizance (s. 145(3))

• Charge date: December 20, 2019: a. Robbery using a firearm (s. 344) b. Possession of loaded restricted firearm without a license (s. 95(1)) c. Possession of firearm knowingly without a license (s. 92(1)) d. Two counts of breach of probation (s. 733.1(1))

[10] Mr. Korkis was born on October 31, 1999 and is currently 20 years of age. He has not been convicted of any criminal offences. He was granted a conditional discharge on September 16, 2019 after pleading guilty to possession of property under $5,000. He was placed on 12 months’ probation and one of the conditions was that he was to keep the peace and be of good behaviour. On October 7, 2019, Mr. Korkis was before the court on a charge of assault and was again granted a conditional discharge. He was placed on 12 months’ probation and one of the conditions was that he was not to possess any weapons as described by the Criminal Code.

[11] Prior to being detained, Mr. Korkis was residing with his parents, who are his proposed sureties, at 142 Thorndale Road, Brampton, Ontario. He has resided at that address with his family since 2011. He has four siblings who are 19, 15 and twin brothers who are six years of age.

[12] Mr. Korkis has not completed high school. According to his parents, he has a sporadic work history. He last worked in June 2019 as a package handler at FedEx. According to his parents, prior to being incarcerated, Mr. Korkis spent his time at home playing video games and going out with his friends.

[13] While Mr. Korkis has no health issues, he sustained a gunshot wound to his leg on December 20, 2019 which required surgery as his tibia was fractured.

[14] Mr. Korkis was initially detained at Maplehurst Correctional Facility, but was then transferred to TSDC. He was lodged in the infirmary in order to receive treatment for his leg injury. He was in Medical Unit A and then moved to Medical Unit B at the end of March 2020.

[15] On April 20, 2020, following an outbreak of COVID-19 at the Ontario Correctional Institute (“OCI”), inmates from there were transferred to TSDC. Those inmates are incarcerated in Medical Unit A, which is about five to ten feet from Medical Unit B.

[16] Mr. Korkis’ evidence is that social distancing is essentially impossible and that it is very difficult to practice clean hygiene at TSDC. Mr. Korkis was to be lodged in a single-occupant cell due to his injury, but since the transfer of inmates from OCI, he now shares a cell with another inmate.

[17] According to Mr. Korkis, he requires physical therapy to assist in his recovery, but he has been unable to receive any such treatment. His evidence is that this lack of therapy will hinder his recovery and may impact his ability to walk. He did not file any medical evidence for this hearing.

[18] Mr. Korkis’ evidence is that he has a positive relationship with his parents and will respect their authority. It is also his evidence that his time in custody, coupled with the injury to his leg during this pandemic, has given him an appreciation to follow court orders.

Summary of the Allegations

[19] It is alleged that on December 18, 2017, Mr. Korkis and other suspects attended at an address in Brampton, Ontario where they proceeded to smash the windows of a vehicle and set it on fire. The car was destroyed. It had a value of $7,000.

[20] It is alleged that the following day, on December 19, 2017, Mr. Korkis and four other suspects attended at an address in Caledon, Ontario. The windows of a vehicle were smashed. One of the other suspects poured gasoline on the car and another unsuccessfully attempted to set it on fire. The vehicle sustained $3,000 in damages.

[21] It is alleged that one month later, on January 20, 2018, Mr. Korkis and three other accused attended at an address in Brampton, Ontario. Mr. Korkis was operating a stolen vehicle at the time. Mr. Korkis used a baseball bat to smash a vehicle’s windows. One of the other suspects had a can of gasoline which was thrown on the vehicle. That suspect then handed the can to Mr. Korkis. The vehicle was set on fire and destroyed. It was valued at over $20,000. It is alleged that Mr. Korkis was a party to this offence.

[22] On July 4, 2018, Mr. Korkis was arrested and charged with 18 offences in connection with these occurrences. He was released on a Promise to Appear.

[23] On January 2, 2019, Mr. Korkis entered into a recognizance of bail in answer to a charge of robbery. One of the conditions of his release was that he remain in his residence daily between 9:00 p.m. and 6:00 a.m. except for medical emergencies involving himself, where an ambulance was involved, unless in the presence of his surety, his mother. It is alleged that on August 4, 2019, Mr. Korkis was not present in his home as required as he was seen at Sunnybrook Hospital, without his surety, at 4:40 a.m. He was at the hospital with a friend who had been shot. He was arrested on August 28, 2019 and charged with one count of breach of recognizance. He was released on a Promise to Appear.

[24] It is alleged that on December 20, 2019, Mr. Korkis contacted an individual through Kijiji to purchase a dog that was advertised for sale. Various text messages were exchanged in connection with the purchase of the dog and to arrange to meet to purchase the dog. It is alleged that Mr. Korkis used a different name in the messages that were exchanged and used an application that disguised his phone number. When the victim and Mr. Korkis met to complete the transaction, Mr. Korkis entered the victim’s vehicle and was given the dog. Mr. Korkis then pulled a loaded firearm and pointed it at the victim. The victim grabbed the barrel of the firearm and a struggle ensued. Mr. Korkis fled the car on foot, with the dog and firearm. As he fled, the victim heard a gunshot and saw Mr. Korkis fall to the ground. The victim also saw Mr. Korkis throw the gun away. It is alleged that Mr. Korkis accidentally shot himself in the leg.

[25] Mr. Korkis was arrested and taken to the hospital where he underwent surgery on his leg. A black Colt 45 caliber semi-automatic handgun with five rounds in the magazine and one in the chamber was later recovered by the police at the scene, where the victim saw Mr. Korkis throw the gun. A bullet from Mr. Korkis’ right leg was seized. After the initial bail hearing, an analysis of the bullet was performed. The analysis indicates that the bullet matches the firearm found by police.

[26] During a subsequent search of his home, three 45-calibre rounds of ammunition and one nine-millimetre round of ammunition was recovered.

[27] If convicted of robbery with a firearm, Mr. Korkis faces a statutory minimum sentence of five years’ imprisonment.

[28] Defence counsel conceded that the Crown has a strong case regarding the December 2019 charges.

Bail Hearing

[29] A contested bail hearing was held on January 3, 2020 before D’Souza J.P. As Mr. Korkis was on previous releases, an application was made and granted to have the previous forms of release cancelled. After hearing evidence and submissions, D’Souza J.P. ordered Mr. Korkis detained on the secondary and tertiary grounds.

[30] The proposed release plan at the initial bail hearing included two sureties – Mr. Korkis’ mother and father. The proposal was that Mr. Korkis would live with them in Brampton, Ontario and abide by house arrest conditions. The sureties would ensure that he was not to leave the house unless in the presence of one of them.

[31] There was evidence that the parents had installed a camera security system at the entrances to the home. There was conflicting evidence about when and why it was installed and if it was operational at the time of the hearing. There was also evidence about a plan to install alarms at the entrances to the house.

[32] D’Souza J.P. found that Mr. Korkis’ behaviour was escalating and that he was at a substantial risk of re-offending. According to D’Souza J.P., the court did not have confidence that Mr. Korkis would not return to his previous behaviour. The court commented that while the sureties were well-intentioned, the lynchpin to a successful bail plan was Mr. Korkis’ willingness to co-operate. D’Souza J.P. did not have confidence in Mr. Korkis’ willingness to co-operate and concluded that Mr. Korkis had not discharged his onus under the secondary ground as set out in s. 515(10)(b) of the Criminal Code.

[33] With respect to the tertiary ground, D’Souza J.P. held that the gravity of the December 2019 offences involving a loaded firearm was compelling. His Worship referenced the statistics regarding the increasing shootings in Peel Region.

[34] After considering all of the factors under the tertiary ground, His Worship concluded that releasing Mr. Korkis would cause the public to lose confidence in the administration of justice. He concluded that Mr.kis had not discharged his onus under the tertiary ground as set out in s. 515(10)(c) of the Criminal Code.

Position of the Parties

[35] Mr. Korkis asserts that the strict terms of the release plan of house arrest, coupled with the additional security of GPS ankle monitoring and his mobility limitations, reduces his risk of re-offending. In addition, given the significant impact of COVID-19 in institutional settings, such as correctional facilities, where social distancing is not possible, a reasonable, well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law, would not lose confidence in the administration of justice if he was released on a strict release plan. His position is that he has therefore discharged his onus under both the secondary and tertiary grounds that his continued detention is not justified.

[36] In opposing Mr. Korkis’ application, the Crown points to his escalating behaviour and evidence of breaches of prior terms of his bail and probation that demonstrate he is not amenable to complying with court orders. The Crown also submits that there remains a substantial risk he will re-offend, even with the strict terms of the proposed release plan. The Crown asserts that COVID-19 is not a get-out-of-jail-free card. Given the strength of the Crown’s case, the serious nature of the violent offence involving use of a firearm, and the significant jail sentence faced if Mr. Korkis is convicted, the Crown argues that he has not discharged his onus under the tertiary ground.

Proposed Release Plan

[37] Mr. Korkis’ parents are again proffered as sureties. They do not work and will be able to monitor and supervise their son under terms of strict house arrest. They live in a rented house and have no savings or assets other than a vehicle. They have each pledged $2,500 for their son’s release.

[38] The proposed terms of release include strict house arrest, a non-contact order with a number of individuals, and no access to a cellphone or computer. In addition, and what was not proposed at the initial bail hearing, is the use of GPS ankle monitoring to be paid by the sureties.

Analysis

[39] The purpose of a bail hearing is not to make any determination of guilt, but rather to determine whether an accused may be released until the disposition of their criminal matters. Of fundamental importance is the right to be presumed innocent until proven guilty as guaranteed under s. 11(d) of the Charter of Rights and Freedoms. In addition, s. 11(e) of the Charter guarantees the right not be denied bail without just cause and a right to bail on reasonable terms.

The Primary Ground

[40] Pursuant to s. 515(10)(a) of the Criminal Code, detention of the accused is justified where it is necessary to ensure the accused’s attendance in court. This is known as the primary ground. It is not at issue in this proceeding.

The Secondary Ground

[41] According to the secondary ground as set out in s. 515(10)(b) of the Criminal Code, detention is justified where it is necessary for the protection or safety of the public having regard to all of the circumstances. The likelihood that an individual will commit a criminal offence does not in itself provide a basis for detention. Rather, bail is denied for those who pose a “substantial risk” of committing an offence and where this substantial likelihood endangers the “protection or safety of the public”. If there is a substantial likelihood that the accused will not comply or cooperate with the terms of bail, they will likely be denied bail. When looking at the secondary ground, the question is whether the proposed bail plan sufficiently reduces the risk factors.

[42] The secondary ground is aimed at the protection and safety of the public. What is required is an assessment of Mr. Korkis’ risk to the public if he is released on bail, which involves an assessment of Mr. Korkis’ propensity to re-offend. It must be kept in mind that the risk of an accused re-offending can never be eliminated. The burden on Mr. Korkis is not to prove, on a balance or probabilities, that there is no risk that he will re-offend. Rather, he must prove that there is no substantial likelihood of re-offending or that the proposed release plan will mitigate such possibility to less than a substantial likelihood.

[43] In assessing whether Mr. Korkis has discharged his onus under the secondary ground, I will review the proposed release plan in more detail.

[44] Ms. Fatin Ashaq is Mr. Korkis’ mother. She was born in Baghdad, Iraq and came to Canada in 2008. She is 38 years of age. Ms. Ashaq is unemployed. The family’s monthly income is $3,900 made up of ODSP and the child benefit. Their rent is $2,500 per month. She and her husband, Mr. Riyadh Rouksi, agree to pay the fees for ankle monitoring which is $250 for the installation fee and $450 per month thereafter. Her evidence is that she spends most of the day at home, except to grocery shop, and she will therefore be able to monitor and supervise her son. It is her evidence that she is aware of all of the charges facing her son. She is also aware of her duties and responsibilities as a surety and is aware that she may be liable for the amount she pledges if Mr. Korkis does not comply with the terms of his bail. She would not hesitate to call the police if her son breached a term of his release.

[45] At the initial bail hearing, Ms. Ashaq testified that when her son is at home, he listens to her, but when he goes out with his friends, he changes. D’Souza J.P.’s finding, with which I agree, was that both parents saw Mr. Korkis’ troubles as stemming from the friends he spent time with outside the home.

[46] Ms. Ashaq’s evidence was that recently, prior to the initial bail hearing, cameras outside their home were installed. On cross-examination, she agreed that one of the reasons that the cameras were installed was because her son was untrustworthy. She also testified that in the past, her son did not listen to her. She testified at the bail hearing that she also wanted to install alarms at the door so that her son could not leave the home without her knowing.

[47] Ms. Ashaq testified that she saw her son in the hospital after he shot himself. He was crying and remorseful and asked for her forgiveness. Her evidence was that she had never seen him like that and that she therefore agreed to be his surety, this last time, given his expression of remorse. Her evidence is that she believes that her son will now listen to her given his injury and what she described as his “brush with death”.

[48] Riyadh Rouksi, Mr. Korkis’ father, is also proffered as a surety. Mr. Rouksi is 42 years of age. He was also born in Iraq and came to Canada as a refugee in 2008. He is now a Permanent Resident. He does not have a criminal record. He does not work and is also at home throughout the day. He is aware of the serious nature of the charges facing his son. He also understands his role as a surety and that he may be liable to pay the amount he pledges should his son breach his bail conditions. He would not hesitate to contact the police if his son breached a term of his release.

[49] At the initial bail hearing, Mr. Rouksi testified during cross-examination that he did not know what his son was up to when he was living with them. He was not sure if he finished high school. He testified that his son would get a job, work for a short period, then quit. Mr. Rouksi also testified that he had not discussed the proposed terms of release with his son. Furthermore, while he was aware that Ms. Ashaq had been his son’s surety in the past in connection with another release plan, he was unaware of any of the conditions that had been imposed by the court. He also gave conflicting evidence with respect to when and why the security cameras were installed at the home. He testified that they were installed some time earlier for general safety reasons.

[50] During cross-examination, Mr. Rouksi testified that his son sometimes listens to him, but sometimes he does not listen and does not follow rules. He agreed that his son is hard to govern.

[51] The Crown does not dispute that the proposed sureties are well-meaning. They are of modest means and the amount they have pledged for security, while relatively nominal, is significant for them given their financial circumstances. As they do not work, one or the other will always be present to monitor and supervise Mr. Korkis. I am satisfied of their commitment to act as sureties for Mr. Korkis and to monitor and supervise him.

[52] Under the secondary ground, bail is denied for those who pose a substantial likelihood of committing an offence that endangers the protection of or safety of the public. Several reasons lead me to conclude that even under the newly proposed release plan, there exists a substantial likelihood that Mr. Korkis will commit an offence that would endanger the safety of the public if released.

[53] Clearly it is difficult to predict someone’s future behaviour. One tool for assessing the likelihood of future behaviour is a consideration of past conduct. In Trotter J.A.’s text, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters Canada Ltd., 2017) at ch. 3, s. 3.3(b), he stated that a number of breaches of undertakings, recognizances and other court orders may be helpful to predict future criminal behaviour while on bail and to assess if an accused will be compliant with a proposed release plan.

[54] While Mr. Korkis does not have a criminal record associated with any breach of prior court orders, he has been charged with breach of a recognizance and breach of two probation orders. This conduct demonstrates a concerning disregard for court orders. Furthermore, his behaviour appears to be escalating from alleged damage to property to committing a more violent act with a loaded firearm that he was prohibited from possessing. The evidence at this juncture suggests that the most recent allegation also involved some planning and deliberation given the contact Mr. Korkis had with the victim before the robbery. This also suggests escalating behaviour.

[55] I have also considered that Mr. Korkis’ failure to abide by court orders all occurred within a short span of time. In August 2019, he was charged with breaching a term of his bail as he left his parent’s home during a period of time that he was ordered to remain. In September and October 2019, as a result of other charges, he was placed on 12 months of probation. Three months later, it is alleged that he pointed a loaded firearm at someone he arranged to meet through Kijiji. He was prohibited from possessing this firearm. The evidence regarding these recent breaches appears, on its face, to be strong and demonstrates escalating violent behaviour.

[56] Mr. Korkis asserts that the court should also consider the added feature of the GPS ankle monitoring system that he is prepared to enter with Recovery Science. His position is that this added feature to his release plan will reduce the risk of re-offending.

[57] Information from Recovery Science was presented regarding the ankle monitoring. When a person being monitored triggers an alert, police will be contacted if there has been a violation of a condition. Recovery Science now offers a new feature involving an application that must be downloaded by the sureties on their phone. Using that feature, the sureties will be contacted on a random basis and must, within five minutes, provide a photograph and video of themselves with the accused stating the date and time. According to Mr. Korkis, this is an enhanced security feature to provide additional monitoring.

[58] While the addition of GPS ankle monitoring may offer an additional layer of supervision and monitoring, the weight to be given to the applicant’s willingness to enter such a program will depend on the specific circumstances of each case: R. v. Jesso, 2020 ONCA 280, at para. 27. In Jesso, the court found that while the GPS monitor can record the presence of the applicant at a specific location, it cannot provide a quick response that would prevent the accused from committing an offence: para. 27. In that case, the court also noted at para. 27 that the applicant did not have an unblemished record of complying with court orders.

[59] Based on the evidence as a whole, even with the use of the GPS monitoring, I am not satisfied that Mr. Korkis will comply with the strict terms of the release plan he has proposed and that there remains a substantial risk that he will re-offend. I note that even Mr. Korkis’ parents consider him to be untrustworthy, hard to govern at times, and have concerns that he does not follow rules.

[60] According to Mr. Korkis, the court should also consider his injury, the limitations on his mobility, and that his weakened physical condition will preclude him from committing further offences. In R. v. M.J.I., 2020 ONSC 2497, the applicant filed medical evidence regarding his injuries which appear to be far more extensive than the injuries sustained by Mr. Korkis. In M.J.I., the applicant suffered multiple gunshot wounds to the lower part of his body which required emergency surgery. He suffered complications which required further surgery. He also had a colostomy which required care and attention and would require further surgery so the accused could have regular bowel movements. Furthermore, in that case, the Crown acknowledged that any concerns on the primary or secondary grounds were adequately addressed by the fact that the accused’s serious injuries would prevent him from committing any further crimes and ensure that the accused attended court as required.

[61] Mr. Korkis has not filed any medical evidence regarding his injury, the nature of the surgery, his diagnosis or prognosis, the extent to which the injury impairs his mobility, or the length of time such impairment will continue. The only evidence is that he sustained a gunshot wound that required surgery and that his tibia was fractured. There is no medical evidence regarding what rehabilitative treatment is required or whether any further surgeries are contemplated. There is also no evidence before the court that Mr. Korkis is in a cast or uses a wheelchair, although defence counsel made that submission.

[62] Even if I accept that Mr. Korkis is in a cast, there is no evidence about when it will be removed, if and why he uses a wheelchair, for how long that will be required, or if it is only used periodically or continuously.

[63] Based upon a review of the material filed, there is insufficient evidence to make a finding that Mr. Korkis’ physical condition would prevent him from leaving his home to commit further offences if released.

[64] Mr. Korkis also asserts that the impact of COVID-19 is a factor to be considered when assessing the secondary ground.

[65] Since Mr. Korkis was first detained, the world has changed as a result of COVID-19. The virus has had an impact of historical proportions on almost every aspect of our daily lives. Businesses and schools have closed. Court operations throughout Ontario have been impacted. In Ontario, the Superior Court of Justice is hearing limited matters remotely. We are urged by public health officials to stay home. The term “social/physical distancing”, unheard of by most until mere months ago, has now become a ubiquitous term used daily. It is now recommended by public health officials that we wear masks in public if we cannot maintain two meters of distance from another person so as to prevent spreading the virus by those who are asymptomatic or undiagnosed. At this time, there is some movement towards re-opening society in a gradual process with a priority on hand washing, maintaining physical distancing, and wearing masks if unable to do so.

[66] Mr. Korkis’ evidence is that the time he has spent incarcerated, coupled with his injuries during the pandemic, have given him an appreciation for court orders. He relies on R. v. Cain, 2020 ONSC 2018, where the court found, at para. 17, that the time the accused spent detained, coupled with a life-changing pandemic, had a salutary effect on the accused’s willingness to follow court orders. As a result, together with the addition of GPS monitoring as part of the new release plan, the court found that there was no longer a substantial likelihood that the accused would commit additional offences: Cain, at para. 17.

[67] While Mr. Korkis may have a current appreciation for court orders as a result of the time he has spent incarcerated and the impact of COVID-19, that does not sufficiently ameliorate the risk he poses given my finding that there is a substantial likelihood that he will commit new offences that endanger the safety of the public.

[68] Although Mr. Korkis does not have a criminal record and is young, the gravity of his alleged behaviour is escalating. The most recent offences are serious and involve the use of a loaded firearm. The risk of harm to the public is increasing.

[69] Given the nature of the December 2019 allegations and the recent breaches of court orders, I find that Mr. Korkis is at a substantial likelihood to re-offend. In addition, I am not satisfied that the proposed release plan, even with the electronic ankle monitoring, will mitigate the risk of re-offending below the threshold of a substantial risk. The question is not whether secondary ground concerns exist, which they do given the nature of the offence, but whether they can be adequately addressed by the proposed release plan having regard to all of the circumstances.

[70] Based on the evidence as a whole, I conclude that there is a substantial risk that Mr. Korkis would commit a criminal offence that endangers public safety if released pending trial. The public safety concerns are therefore sufficient to warrant his continued detention.

The Tertiary Ground

[71] Having found that Mr. Korkis’ detention is warranted on the secondary ground, I need not consider the tertiary ground. However, I will address this issue as evidence was filed and submissions were made.

[72] According to s. 515(10)(c) of the Criminal Code, detention is justified if it is necessary to maintain public confidence in the administration of justice, having regard to all the circumstances including:

(i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[73] Under the tertiary ground, the basis for detention does not focus on the accused and what they might or might not do, but rather on the public’s perception or attitude towards release of the accused. In R. v. Rajan, 2020 ONSC 2118, Harris J. thoroughly reviewed the tertiary ground for detention and concluded that the public’s confidence in the criminal justice system has been significantly altered by the threat of COVID-19 in the jail setting: paras. 36-74.

[74] When considering the tertiary ground, if there is a strong case against the accused who has allegedly committed a serious offence involving vulnerable victims and facing a lengthy sentence if convicted, the public would lose confidence in the administration of justice if the accused was released. In those cases, detention will be ordered: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 88.

[75] At this stage of the proceeding, based on the record available for review, the Crown appears to have a strong case against Mr. Korkis. I am mindful that at this stage of the proceeding, the Crown’s case is likely at his highest as the evidence before he is untested. At this stage of the proceeding, the strength of the Crown’s case favours detention.

[76] With respect to the most recent charges in December 2019, Mr. Korkis was found outside the victim’s car with a self-inflicted gunshot wound. The complainant saw Mr. Korkis discard the weapon where the police located it. A bullet from Mr. Korkis’ leg matched the weapon. The robbery was planned as there are records of messages between Mr. Korkis and the victim regarding the purchase of the dog and arranging to meet. That element of planning also heightens the seriousness of the offence and the requirement to protect the public and maintain confidence in the justice system. The gravity and circumstances of the offence case favours detention.

[77] If convicted, Mr. Korkis will likely face a penitentiary term as there is a mandatory minimum sentence of five years’ imprisonment. That is a factor that favours detention.

[78] I have also considered the statistics that demonstrate the increasing use of firearms, the increasing number of shootings in the Peel Region, and the danger posed to the public by the reckless use of loaded firearms in the commission of offences. The charges Mr. Korkis faces are serious. Not only did he possess a loaded firearm, he pointed it at a victim who met with Mr. Korkis to sell him a dog. These factors all favour detention under the tertiary ground.

[79] COVID-19 is a factor to consider when weighing the public interest under the tertiary grounds. It is not, however, determinative and does not result in the automatic release of an accused; R. v. Araich, 2020 ONSC 2505 at para. 20.

[80] When assessing the public’s confidence in the administration of justice, COVID-19 has changed the landscape. The elevated risk posed by the virus on detained persons, as compared to being on house arrest, must be considered in assessing the tertiary ground: R. v. J.S., 2020 ONSC 1710, at para. 18.

[81] Even in light of the global pandemic, the court must remain vigilant and mindful of the risk posed by the release of violent offenders. As stated by Harris J. at para. 74 of Rajan, the risks posed by COVID-19 do not constitute a “get out of jail free card”. Those who constitute a serious physical threat to the public must be detained in pre-trial custody. Violent offenders should not be released into the community simply to reduce the prison population. Each decision must be made on a case-by-case basis.

[82] While there is no evidence that Mr. Korkis has any health issues making him more vulnerable to the virus, he is currently being held in a medical unit next to the unit where inmates who have tested positive are detained. He is in a cell with another inmate. While incarcerated, Mr. Korkis cannot maintain the physical distancing recommended by medical professionals.

[83] I accept the evidence of Dr. Orkin regarding the impact of COVID-19 on congregate settings, such as correctional facilities, and the necessity to reduce the population size of those institutions to protect the health of the particular inmate and all those who reside and work in the setting.

[84] I also accept the information from the Ministry of the Solicitor General regarding the steps taken at correctional facilities, including TSDC, to reduce the risk of exposure to COVID-19. This includes enhanced screening, the wearing of personal protective equipment by some staff, the suspension of personal visits, additional cleaning, and the supply of cleaning products to inmates. The Crown also introduced information about the number of persons tested and the limited number of positive results.

[85] The efforts being made by institutions across Canada are laudable: Rajan, at para. 62. These are, however, unprecedented times in our history. Despite significant restrictions in all aspects of daily life and precautions found in many institutional settings, there have been thousands of people who have been infected by the virus in Canada. Despite the efforts being made at all correctional facilities, a jail setting is simply not conducive to the critical physical distancing that is necessary as recommended by health authorities: R. v. C.J., 2020 ONSC 1933, at para. 9. I also agree with Conlan J. that the applicant is not required to file evidence to support this finding: C.J., at para. 9.

[86] Mr. Korkis acknowledges that he does not have any pre-existing health issues which make him more susceptible to contracting the virus. As I found in R. v. Seegobinsingh, 2020 ONSC 2274, at paras. 50-51, even if Mr. Korkis does not have any heightened risk of contracting the virus or having a more serious response to it, what is equally important is that he not be a source that can spread the disease to other inmates or correctional officers. The focus is not just on Mr. Korkis’ own health, but also his ability to spread the virus should he become infected but remain asymptomatic.

[87] This hearing was conducted by teleconference, which emphasizes the priority we place on physically distancing ourselves from each other to prevent the spread of the virus. These efforts are simply not possible for those who are incarcerated, particularly for those that are bunked in the same cell with another inmate.

[88] In my view, the reality of the virus and its impact must now be considered as a circumstance to consider under s. 515(10)(c) of the Criminal Code. The public’s confidence in the criminal justice system requires that.

[89] Nonetheless, the weight to put on COVID-19 as a factor depends on the circumstances of each case: Jesso, at para. 36. My finding of the substantial likelihood that Mr. Korkis will commit an offence that will endanger the safety of the public and the need for the protection of the public that is mandated by the secondary ground supersedes the threat posed by COVID-19 to inmates: R. v. Syed, 2020 ONSC 2195, at para. 50. While there is a heightened risk of Mr. Korkis contracting COVID-19 while incarcerated, that risk, in and of itself, does not lead to the conclusion that he should be released based on the tertiary ground. In weighing all of the factors, including the impact of COVID-19 on correctional facilities, I find that Mr. Korkis has not discharged his onus on the tertiary ground.

Conclusion

[90] The bail review application is dismissed.

“Original signed by”

L. Shaw J.

Date: June 4, 2020

COURT FILE NO.: DR(P)250/20 DATE: 2020 06 04 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and - ANDRY KORKIS

BAIL REVIEW APPLICATION

L. Shaw J. Released: June 4, 2020